judges with Moraes’ mistakes would be held responsible

Jurists believe that minister Alexandre de Moraes could be held responsible for the death of Cleriston Pereira da Cunha, known as “Clezão”, in the Papuda Penitentiary Complex. Although a minister of the Federal Supreme Court (STF) is not under the jurisdiction of the National Council of Justice (CNJ), the body would tend to punish magistrates from other instances who had not released a prisoner under the same circumstances as Cleriston.

Clezão, as he was known, was arrested for participating in the events of January 8th. On September 1st, the Federal Public Ministry (MPF) expressed its support for his provisional release when analyzing the documentation sent by the defense – in several petitions reiterated and updated since January –, explaining the prisoner’s delicate health condition.

Cleriston was a first-time offender and had comorbidities such as hypertension and diabetes. After being affected by Covid-19, the businessman began to have heart problems and was hospitalized for several weeks in 2022. Hours after his arrest, on January 8, in the Senate, Cleriston needed to be treated by an ambulance, as he was deprived of medicine. The health situation worsened over the 10 months of imprisonment due to the lack of exams and other necessary care. According to article 318 of the Code of Criminal Procedure (CPP), Cleriston’s conditions would give him the right to house arrest.

“It was a death announced. Sudden death is when someone healthy, who has had some complications, dies. It was a death due to comorbidities”, stated Sebastião Coelho during the Fio Diário program. “He did not die of a sudden death, he died due to the omission of his judge”, he adds. Sebastião Coelho was a judge at the Federal District Court of Justice and works as a lawyer for some of the January 8 defendants.

Judges must have greater control over cases involving preventive detention

A recent decision by the CNJ states that “it is also up to the judge to control the court’s preventive arrests and organize proceedings with the defendant in prison”. “In cases of first instance judge or judge [com conduta semelhante à de Moraes], the CNJ would investigate. It would be a case of at least a suspension of the judge or even a retirement”, says Adriano Soares da Costa, former judge. The expert reinforces that magistrates must take special care of inmates who have not yet received a conviction. Article 316 of the CPP establishes that the judge has the duty to review the need for preventive arrests every 90 days, which, apparently, was not being done by Moraes.

Soares da Costa comments that Cleriston’s case has the aggravating factor that the businessman died inside the prison. “There are already cases of judges being removed due to delays in processing an arrested defendant. If you look at the CNJ’s own jurisprudence for judges, which is not applied to the Supreme Court, it would be considered a serious case,” he says.

The CNJ rule establishes a maximum period of 24 hours to decide on the release of the provisional prisoner. In the case of Cleriston, the request was not assessed by Alexandre de Moraes, rapporteur of the process, for 80 days. Now, in preventive detention, the prisoner’s requests for release from the defense were not considered.

Recently, the CNJ condemned a judge for omission when deciding on the release of a defendant who was in pre-trial detention. The first instance judge was sentenced to censure for taking 5 months to analyze a request from the Public Prosecutor’s Office that suggested the investigation be closed. Furthermore, the magistrate took eight days to comply with the release permit. The penalty of censure, when the judge is prohibited from being promoted based on merit for one year, is considered intermediate. If the magistrate is again accused of negligence, he may be compulsorily retired.

The Senate is responsible for investigating crimes of responsibility committed by STF ministers

“Brazilian criminal legislation itself has provisions for this criminal liability. Eventually, the abuse of authority law would apply”, explains Adriano Soares da Costa. The Abuse of Authority Law (13,869/2019), in its article 9, provides for a prison sentence of one to four years and a fine in cases of authorities that decree “a measure of deprivation of liberty in clear non-compliance with legal assumptions”.

Soares da Costa adds that “there are a series of legal discussions in this specific case that could lead to the application of the law, such as the issue of the custody hearing and the preventive detention decree”. A People’s Gazette has already dealt with some irregularities in the Cleriston process.

But the National Council of Justice does not have the power to analyze the irregularities of Supreme Court ministers. Soares da Costa states that the Federal Senate is the body responsible for investigating crimes of responsibility committed by court ministers.

Sebastião Coelho considers not only Alexandre de Moraes, rapporteur of the process, but also Rodrigo Pacheco, president of the Federal Senate, and the other senators to be directly responsible for Cleriston’s death. Coelho also points out that the Attorney General’s Office could also open a public criminal action against Moraes.

A bill calling for amnesty for those arrested on January 8 and a request for impeachment of Moraes are being processed in the Senate. On Wednesday night (24), senators approved a PEC that delimits the powers of the STF, which will now be discussed in the Chamber of Deputies.

For the former minister of the Supreme Court of Justice, Eliana Calmon, the National Congress must act. “The only legal force written in the Constitution that can put a limit on the illegalities and irregularities committed by the Federal Supreme Court is the National Congress. This is not happening,” she stated.